205 P. 206 | Mont. | 1922
delivered the opinion of the court.
The complaint in this action, omitting the formal parts, sets forth that plaintiff and defendants Richards and Chinn con
The right of the plaintiff to maintain the action cannot be
Section 5065, Revised Codes of 1907, provides that, as a
The evidence discloses the following facts: On November
There is evidence that neither Bichards nor Chinn gave any consideration to the bids other than the bid of the Connell Company. Touching the character of. the property purchased, the evidence discloses that the piano was about a third-grade instrument when new, and, when new, was of the reasonable value of $275 or thereabouts; that in fact it was a secondhand piano which had been subjected to hard usage for anywhere from two to five years; that several of the hammers had been broken off and repaired in an unworkmanlike manner; that the keys were yellow with age; that the strings were badly rusted and had been covered with japalac or some similar substance to hide the rust; that some of the strings had been broken and repaired; that under the keys there had accumulated large quantities of dust, pins, burnt matches, buttons, carpet sweepings, lint, etc.; that at one end a large piece had been broken out of the ease and replaced with putty or some other substance, and that in its then condition the instrument was worth not to exceed $200; that the victrola was an old style instrument, a style not then manufactured;
To say the least of it, this evidence established a prima facie case of fraud. The fact that the transaction had its inception in an illegal contract, that the instruments purchased did not measure up to the requirements of the published notice, that the piano was a cheap, inferior, secondhand instrument which had been subjected- to long, hard usage, that the price paid for it was nearly double its fair, reasonable value, and that the price paid for the victrola was $25 more than the retail price, and the fact that no consideration was given to the bids other than the bid of the Connell Company, cannot be reconciled with the theory that the majority of the board acted in good faith and solely for the best interests of the district.
It is urged by respondents that the board was vested with
The motion made by the defendants at the conclusion of
No good cause appearing for ordering a new trial, the judgment and order are reversed and the cause is remanded to the district court, with directions to enter the proper judgment in favor of the plaintiff.
Reversed.